Legal situation in Germany – Sexual self-determination
Critics have long been calling for a reform of Section 177s (of the Criminal Code) and the introduction of the consent model in Germany as well. They argue that this is the only way to close loopholes in criminal liability and to comply with Article 36 of the Istanbul Convention. These objections also suggest that a reform of sexual offences legislation is needed in Germany. In 2016, the then grand coalition reformed Section 177 of the German Criminal Code (StGB) in response to the incidents on New Year’s Eve in Cologne and to implement Article 36 of the Istanbul Convention. With this reform and the introduction of the ‘No Means No’ model, any sexual act carried out against a person’s recognisable will became a criminal offence. Previously, the use of force and threats against the victim were required for an offence to be established. This reform is increasingly regarded as inadequate. Even within the centre-right political family, doubts are growing as to whether the ‘No Means No’ model sufficiently empowers women in their sexual self-determination.
Amendment to the definition of rape
Christian Heinz, the CDU Minister of Justice for the State of Hesse, told “Die Welt” on 16 June this year: “‘Yes means Yes’ is, in our view, the right way to finally provide better protection for women.” On 28 April, the European People’s Party (EPP) also voted by a majority in favour of the resolution on ‘The importance of consent-based legislation on rape in the EU’, thereby endorsing a change to the definition of rape to be implemented across the EU, which is in line with Article 36 of the Istanbul Convention.
The Istanbul Convention
The Istanbul Convention, a legally binding agreement under international law drawn up by the Council of Europe, was drafted in 2011 and came into force in 2014. Germany ratified it in 2017. Article 36 states that the contracting parties shall criminalise all non-consensual sexual acts. Consent is therefore regarded here as an indicator or criterion of voluntariness. In accordance with this ‘consent model’ – also known as the ‘Yes Means Yes’ model – any sexual act committed against a person without their consent must be considered a criminal offence. In Germany, however, the offence of rape is only deemed to have been committed if the victim recognisably resists the sexual act through words or actions.
Criticism of criminal law – Abolition of the ‘No means no’ model
In its 2022 evaluation report, the Council of Europe’s independent expert body, GREVIO (Group of Experts on Action against Violence against Women and Domestic Violence), criticises the German legal situation accordingly. The body emphasises that the current wording of Section 177 of the German Criminal Code (StGB) does not permit prosecution if the victim remains passive during the offence. In this context, two problems are highlighted. Firstly, the ‘No Means No’ model focuses on the victim’s actions rather than those of the perpetrator. Secondly, this legal provision reinforces gender stereotypes and rape myths. At the same time, the committee points out that freezing, also known as ‘tonic immobility’, is a recognised reaction among victims according to neurobiological studies. The committee therefore calls for German criminal law to be brought into line with Article 36 of the Istanbul Convention.
Fundamental reform of sexual offences legislation and the introduction of the principle of consent
In the spring of 2026, the European Parliament also voted by a majority in favour of sexual acts carried out without explicit consent being classified as rape. It has therefore called on the European Commission to introduce EU-wide legislation that complies with this definition. The German Association of Women Lawyers (djb) points out that only a fundamental reform of sexual offences legislation and the introduction of the principle of consent would meet the requirements of the Istanbul Conference.
Regulations in other European countries – Alignment with the Istanbul Convention
In 2018, Sweden became the first European country to introduce the ‘consent’ rule into law. Compared with the corresponding period, the number of rape charges rose by 500 cases after 2018. What is notable about the Swedish approach is that a verbal ‘Yes’ is not necessarily required, but that there must be recognisable consent, for example through active participation. The Swedish consent law is also said to have a norm-setting effect. Two-thirds of EU Member States have, in recent years, aligned their criteria for rape with the international standards of the Istanbul Convention. Since November 2025, the ‘Yes Means Yes’ model has also been in force in France. With its existing legislation, the Federal Republic of Germany is therefore something of an exception and a laggard. A legislative amendment or reform of German sexual offences law in line with the consent model therefore appears necessary and long overdue.
